The Opinions - The Trump Administration Is Disappearing People Like the Soviet Union

Episode Date: April 18, 2025

Last week, the Supreme Court ordered the Trump administration to “facilitate” the return of Kilmar Armando Abrego Garcia, a Salvadoran man deported because of an “administrative error,” back to his home in Maryland. But, so far, the administration has not complied. On this episode, Michelle Cottle, who writes about national politics for Opinion, speaks with her colleagues Jamelle Bouie and David French on what this defiance means for the power of the judicial system and the threat it poses to our rights.Thoughts? Email us at [e-mail] episode of “The Opinions” was produced by Derek Arthur. It was edited by Alison Bruzek and Kaari Pitkin. The rest of the show's production team includes Vishakha Darbha and Jillian Weinberger. Mixing by Carole Sabouraud and Efim Shapiro. Original music by Pat McCusker and Carole Sabouraud. Fact-checking by Mary Marge Locker and Kate Sinclair. Audience strategy by Shannon Busta and Kristina Samulewski. The director of Opinion Audio is Annie-Rose Strasser. Hosted by Simplecast, an AdsWizz company. See pcm.adswizz.com for information about our collection and use of personal data for advertising.

This is The Opinions, a show that brings you a mix of voices from New York Times Opinion. You've heard the news. Here's what to make of it. I'm Michelle Cottle, and I cover national politics for Times Opinion. Since Donald Trump came roaring back into the White House, there has been a looming question about how far his administration will push against the rule of law, the Constitution, and the democratic norms that have bound the country together for generations. For a lot of people, this week, a line was crossed. A stunning admission from the Trump administration.

It admits in a court filing that a Maryland man was sent to the notorious El Salvadorian mega prison. Kilmar Abrago-Garcia was deported by mistake because of what they described as an administrative error. The Supreme Court decided last week the U.S. government must facilitate the return of Garcia. Attorney General Pam Bondi said Garcia's return. is at El Salvador's discretion. And things escalated this week when a federal judge

threatened to open a contempt investigation into whether the administration has violated a judicial order. So we find ourselves now in this extremely surreal moment where we are actually having to ask, can the government stiff arm the nation's highest court?

And what happens if it does? To tackle these questions, I am joined by two of my brilliant opinion colleagues who've been digging into this whole mess. David French is a former attorney who's been looking at how Supreme Court could and maybe should respond. Jamel Bowie covers politics through a historical lens and has written about where this whole case fits in American history. Guys, welcome and thank you so much for coming to help me make sense of this mess. Our pleasure. Thanks, Michelle.

I would say it's a pleasure, but it's a pleasure. but it's kind of a grim pleasure. Right? Yeah, nobody's having much fun with this, but we might as well dig in and pick it apart as best we can. So I guess starting out, I want to ask both of you.

So what's happening with Abrago Garcia is unprecedented. I know we use that word a lot. I kind of hate it, but it seems justified here. A man was deported to a country where a judge specifically said he could not be sent.

Judges have ordered the administration to return him, and the administration's response has essentially been nothing we can do, so sorry. What is your top line reaction to all of this? I mean, my initial reaction to all of this is just that it really demonstrates the administration just breathtaking contempt for the rule of law.

I mean, the entire way these operations are unfolding where people are being essentially whisked off the street and then, you know, obviously without any opportunity for a hearing, any opportunity to disprove that the government says who they say they are, and then shipped off to this prison where they are essentially, I mean, they are not essentially disappeared,

they are disappeared, right? Disappeared in the way that you would associate with the Soviet Union. And even then, people got out of the gulag. It took a while, but it happened. It's just a, it's breathtaking. For anyone inclined to give the administration the better of the doubt,

to say, well, maybe they've gotten some things right on some issues. This is the kind of thing that overrides all of that. Who cares if they're making the right moves on trade policy? Like, who cares if what they're also doing is, like, renditioning people to be disappeared? David. I don't think folks understand how completely the Trump administration is demolishing the Bill of Rights here. Because when you really dive into the legal doctrines, the first thing you have to know is that the protections of the Bill of Rights as a general matter accrue to persons, not just citizens. So if you're a human being in the country, you enjoy the protection of the Bill of Rights. So this sort of argument that, well, this is awful for this undocumented immigrant, but I'm an American citizen. This couldn't happen to me. It's just completely wrong. I mean, Trump is already talking about bringing American citizens that may have committed particularly heinous crimes and sending them to this El Salvador in prison. And so when you have a human being taken from the United States against a court order sent to a prison, and this prison, by the way, would violate cruel and unusual punishment standards in the United States. And then what he's saying is, well, now he's in a foreign country.

And so this is all just a matter of foreign policy. And you can't make me do anything. And of course, you can't enter an injunction order against El Salvador. So think this through. if human beings, you're one of them, if you're listening to this podcast right now, if human beings who are covered by the Bill of Rights can now be whisked away from the United States of America, dumped into an inhumane prison, and then an American government just washed their hands of it now, it's not a matter for the courts to intervene because it's a matter of foreign policy. You've just hacked the

bill of rights. I mean, there's just no other way around it. And so, you know, as Jamel said, this is far more fundamental than swings in the stock market or the unemployment rate. This goes to the core of who we are. This goes to the core of the American national promise. Okay, before we get into more of the legal ins and outs, which I want to do, I want to ask you both. My suspicion is just that the capriciousness and unpredictability of this is kind of the point. You know, a little bit like we talked about the cruelty is the point with the kids in cages during the last Trump. administration. My assumption is that they want everybody unsettled. They want to send a warning shot

that if you cross this administration, anything can happen to you, and they're not going to sweat the details about it. I think that's intentional, that they are more than happy to freak everyone out. I think that's right. Sort of two thoughts, one building off of what David said earlier. I think it's really important to underline how many of the Constitution's fundamental protections, as David said, accrue to persons. It's not about whether you're a citizen. And in fact, there's something I think truly profoundly un-American in the assertion that only citizens have any sort of full rights to protections under this system of government. Part of the whole point, part of the thing that's supposed to make the American experiment distinctive in world history, is it

it's precisely that we protect those who don't necessarily belong to the polity in a formal way. Simply being here grants you these rights and protections because they, again, they accrue to people on the basis of their personhood, on the basis of the fact that they are alive in human beings, and they deserve, on a fundamental level, a specific set of protections and rights. And so this idea that exists on the Make America Great Again Right, right, that like, oh, in fact, whether or not you have rights is entirely a function of your citizenship or even, or even if you're a citizen, whether or not you have some sort of organic tie to the soil, it's just like a rejection of the whole American project. Like at that point, go, I mean,

no offense to our European listeners, but like go, go emigrate to Europe. That's their whole deal, right? Like, it's not ours. The second thing is, I think you're right to say that this is intentionally capricious, intentionally chaotic. I mean, they're not competent either, but I think they do want to create an environment of fear. And this too gets to, it gets to the character of this administration. They're not even operating in the realm of trying to, in good faith, lead a representative government in a system, in a system of government. they understand their role as that of dominating the people within the society, which is just like at odds, again, what this is supposed to be about, right?

This is supposed to be a cooperative endeavor. This is supposed to be a collective endeavor. Like, the American system isn't the boss man tells everyone what to do. And if you don't listen to him, he renders you socially dead. Like, that's not how this is supposed to work. Yeah, I don't think their version of American exceptionalism looks anything like that. Jamal. They don't dig that point. So going back to the legal ins announced, David, what did you take away from Tuesday's hearing with the district judge? Well, look, the district judge can see what is plain to everyone, which is the administration is just not acting in good faith here. I mean, this is a situation where in any normal American administration, Republican or Democratic, if they had sent someone overseas and defiance of a court order, they would immediately.

get them back. I mean, this would be a one-day story. It would be mistake made, and there would be efforts to address the mistake. But what is very, very, very clear is that this administration is just not, it is acting in open defiance, and then when being called on it, is appealing to sort of some vague language in the Supreme Court case. What does facilitate mean? Who's to know as if the meaning of the word facilitate has been like lost to time? So in the one hand, you know, in the legal sense, they are making these very technical legal arguments that, while it's plain to everyone, they're not operating in good faith. They're not really technically, truly, really defying the court, and then they're turning around in the court of public opinion and just being much more brazen

about it, you know, insulting the judges that are hearing the cases, mocking the very idea that these judges have the power of judicial review, which has been settled since Barbury v. Madison in like 1803. In court, they come in with very hyper-technical. arguments to try to get the judge to avoid seeing what's as plain as the nose on her face, that they're just mocking her power. They're mocking the power of the Supreme Court. I mean, and one of the big challenges here is that the Supreme Court doesn't really have enforcement tools, right? I mean, it doesn't have the power of the purse. It doesn't have the power of the sword. So what power do their decisions have? Yeah, I'm glad you asked that

question. I had the privilege of talking to Judge Jeffrey Sutton, who's a chief judge of the Sixth circuit on an opinions podcast not long ago, asked him this very question, and he said, you know, look, we don't have the power of the treasury, just like you said, Michelle, we don't have an army. Their actions depend on enforcement by other branches of government. So enforcement by the executive branch primarily. And so if the executive branch of the other branches of government don't enforce, then the court rulings have little practical meaning in the short run. But that's not the end of the story.

I wrote a newsletter that came out recently that said, look, we have a pretty recent history of massive resistance to a court order. And that was the massive resistance to Brown versus Board of Education. That order was not enforced for years fully. I mean, I think the last school district to desegregate in the U.S. happened in about 2016. So this was a very, very long process with an enormous amount of resistance. But the Supreme Court did its job. It did what it was supposed to do. And so I think the court needs to focus on doing its job, issuing the rulings that it needs to issue, far more than it needs to try to think about nine-dimensional chess on enforcement.

I think that's absolutely right. The Brumby Board example is really important because what you see in the reaction to massive resistance is you begin to get the federal government involved, right? And that's obviously not going to be possible here. but also other civil society institutions begin getting involved. Courts obviously are taking their leave from the Supreme Court, right? Like the court ruling against the administration, even if the administration's like, we don't have to follow that. Other actors in the society are going to take that seriously.

In part, right, because, you know, as of now, the presumption is that, like, the administration isn't going to be here forever, but the court will be here four years from now, right? Like, the law will still be here. And so that, the court's decisions help orientate. how the rest of the political system and civil society respond to particular disputes. And that is as important, if not more, than how the administration is going to respond. If the court is smacking down in a really decisive way, these efforts to gut habeas corpus protections,

destroy due process, other actors are going to, first, maybe be more aggressive in their pushback against the administration. And second, right, like immigration lawyers, other practicing attorneys will take their cue, say, oh, we can file suit, we can push back, and we'll likely get a pretty good hearing from whoever we come before, in part because the court has established this is what the law is here. So what the court says just in and of itself matters, even if the court can't strictly enforce it, and it has to go through this year's long process like we saw with the civil rights movement.

I mean, you've written a lot about the historical parallels that you see in this, Jamel. What lessons from the past feel most relevant, either in a optimistic or pessimistic way for you right now? I mean, this is neither optimistic nor pessimistic. It's just sort of an observation about how, like, rights work. And I wrote about this this week in my column. But, you know, in the priests of war, America, there was a fairly large population of free black Americans. Not like, not like million strong, but like in states like Ohio, Illinois, sizable populations. But the thing about being free, a free black American in this period is that your status, not unlike that of an undocumented person or something, someone but just sort of a temporary protected status, your legal status was incredibly provisional.

in part because the states you lived under likely had these anti-black laws that really put tight restrictions on what you could do, what legal rights you had. But more importantly, the existence of slavery, the existence of a non-protected class of people to which you have this racial connection rendered you insecure as well. So the thing I know in the piece is that free black Americans were in regular danger of being kidnapped and sent down south with no real recourse. But even after the Fugitive Slave Act just passed in 1850 or the second Fugitive Slave Act, there wasn't really due process if a slave catcher showed up in your town and were like, you're a runaway, right? Like, you can't, how are you supposed to prove that you're not? And I brought that up just to know that, like, the existence of slavery of this class of people

who are outside the law necessarily degraded the rights and citizenship of the people who were nominally inside the law. And that this extended not just to black Americans, but to white Americans too. of what precipitates the armed conflict over slavery in the 1850s is precisely the fear among many whites that what is happening to blacks is going to happen to them eventually. And in our case, today, if we're going to accept the existence of a class of people who can be renditioned abroad with no legal protections, that necessarily means that the rest of our rights are highly provisional.

Once you grant the power to place one group of people outside the law, you've effectively granted the power to place all people outside of the law. Well, which brings us back to the point that Trump has made, that he'd be perfectly open to deporting homegrown criminals. How feasible is this? And, you know, basically how terrified should we be? As a practical matter, it's extremely feasible. As a practical matter, it's the easiest thing to do in the world, that he could just put him on a plane now. I think what you're seeing, here is a process of testing and prodding. And so he's sort of hammering away at various American institutions and traditions. And I think each wall that caves, each barrier that collapses, he just

will keep hammering. And, you know, I ask the people who've come to me and say, David, he's not going to do this to citizens. No, come on, this is bluster. And I've asked, where is your evidence that he has a line? Because at this point, if you're in the camp of take Trump seriously, but not literally, you know, that phrase from 2016, well, all of us, as Southerners are familiar with, bless your heart on that take, you know, bless your heart on the idea that this man has self-restraint. And so you have to ask about that immediate next step, and that immediate next step is citizens, watch out. And then you might think, well, that's only criminal citizens. Those are only the citizens who have already done terrible things and have

lost many of their liberties. But look at the power he's exerting over civil institutions here in the U.S. in blatant violation of their First Amendment rights. I mean, again, where is the line? Show me the line that he's not willing to cross. I couldn't say it better than that. There simply isn't any reason to give this administration the benefit of the doubt. The thing we know about Donald Trump is that he is a habitual line stepper, right? Like, wherever you place the line, going to step over it. And when you draw a new line, he'll step over that. And so they can say, oh, this is only going to be incarcerated people. And then the line will be drawn again. They'll step over it. And they'll choose some new category of people. Of course, the Trump,

criminal isn't something you do that is proven in a court of law. It's a quality of a person. So who knows who's going to be a criminal in his estimation. Oh, I think all three of us would qualify, Jamel. Oh, yeah, we would definitely qualify as criminals. So you can go no further than this point. Like, this is the place for everyone, I think, in civil society to take a stand. I keep thinking of, because of the way my brain works, I'm thinking of like two movies right now. The first.

Okay. The first is one, David, I'm sure you'll be familiar with Star Trek First Contact. Oh, yeah. When Picard is talking about the Borg and how that at every turn, the Federation, retreats from the Borg, you know, this has to be the place where they take a stand. The line must be drawn here. The other is Paul Schofield in the 1966 adaptation of a man for all seasons, where, and he's playing Sir Thomas Moore, when he's being pressed to arrest someone who hasn't broken the law,

just sort of like violated, you know, whatever norm. His character says, I'd give the devil the benefit of the law for my own safety. And that's due process. That's constitutionalism. We have to give even the people in our society that we find the most reprehensible and despicable the benefit of the law. Because if they do not have it, then who does? So you guys have brought up that he's testing.

He's poking. He's crossing lines. He's sledgehammering. And in part, I think what they wait to see is if there's some kind of just like response that's overwhelming so that they know they've gone too far or some kind of huge. public outcry or, you know, maybe someday Republican lawmakers would stand up and say enough. But compounding the problem here in terms of public opinion seems to be that this administration just makes stuff up and says whatever it wants to.

And for people who aren't following it extremely closely, it can sound different, right? So like on Tuesday, Stephen Miller, one of the president's top advisors, said, emphatically, that Abraigar Garcia is a gang member. Press secretary Carolyn Levitt called him an MS-13 El Salvadorian, illegal alien criminal who was hiding in Maryland. I mean, with this kind of just BS, I'm sure many of Trump supporters

believe that he is a proven, dangerous criminal gang member. And by him, I mean, Abrago Garcia, not Trump. On the whole, do you guys think any of the facts of this case are cutting through to people who are inclined to give Trump the benefit of the doubt. You know, one of the tells about how MAGA is thinking is if you see them start to sort of like celebrate in real time that we're talking about this issue.

And so I think a lot of MAGA thinks they're winning this issue, that if we are talking about Garcia, then we're not talking about the economic instability that they see is the real threat to their power because they know something. And Michelle, you hit the nail on the head. In people's minds right now, this is a terrorist gang member of MS-13 that Trump is trying to keep outside of America while the far left is trying to bring this terrorist gang member back into America into, you know, a town near you. And I think that they think this works for them, actually. And now this is the hardcore mega folks. I'm not sure that they're right about this. I think a lot of people understand sort of the very basics that the court said don't send him to El Salvador,

and you send him to El Salvador, just bring him back. And if he's deportable somewhere else, fine, but you violated a court order here. This was not supposed to happen. A lot of people just understand that. And they understand lawlessness. You know, there was the town hall kind of viral clip where the guy says, if I get this $1,200 fine from a court, can I just say no? Does that stand up? Because he's got an order from the Supreme Court, and he just said no. Yeah. Is that how this works now?

So I do think this is cutting through. But no one should be under any illusion here. MAGA believes that the more we talk about immigration, that better it is for Trump. And they may not be entirely wrong about that politically. Jamel, I mean, do you see an opportunity here for Democrats? Or is this all just downside? Yeah. So I see an opportunity here.

The way public opinion tends to respond to Trump with immigration is the broad public likes the idea of like an immigration crackdown, right? So they like the idea of, yeah, people shouldn't be able to come here illegally. And kind of along the lines of David's point that people understand lawlessness, they see that as being a kind of lawlessness they don't like. They don't like it. So they don't want it. They don't like the idea of like a flood of people coming in, which is not really what's

happened, but they don't like that idea. And so when Trump talks about, you know, deporting illegal immigrants or whatnot. Like the public likes that. They are on board with that. But when it comes to actually specific discrete policies, right, like we're going to separate children from family. People are like, I don't, I don't like that. Like, I want you to do that. That seems lawless. That seems unreasonable. We're going to just start deporting people without giving them their due in court. I don't like that very much, right? Like that doesn't seem okay. And so the opportunity here for Democrats is don't talk about immigration as like an abstraction.

Talk about Abrago Garcia. Talk about the specific people and what's being done to them. And ask voters, ask the public, do you want this to happen to you? Do you want this to happen to your neighbor? Do you want this to happen to the people who you work with on the job? Hey, you're a contractor. You hire a lot of dudes who are just like a Brego Garcia. do you want to see ice agents come and like send them away for them to be gone for the rest of their lives?

Like the opportunity is in like this is a dramatic story. There's drama here. So the opportunity in sort of like is enhancing the drama. And I get the sense that Democrats are beginning to understand this. Chris Van Hollen, the senator from Maryland, the state, of course, where Rebecca Garcia resides, going down to El Salvador, for example. I told his wife and his family, I would do everything possible to. bring him home. It's dramatizing this in the way that attracts attention. The Brick Garcia belonged to a sheet metal worker's union and the union leader on CNN was like, we got to get this guy back.

Our union is founded on due process. We want our brother Kilmar to come back and get his due process. People see that and it sort of signals, oh, this is something to take seriously and be important. So I think there are opportunities here. I actually think the fact that the administration is like, is it gone beyond, oh, this guy shouldn't have been here, to screaming that he's a terrorist and he's like the top guy in MS-13. Like, that's a sign of weakness in my view, right? Like, you don't start turning up the volume like that if you're confident that the public is on your side. You start turning up the volume like that when you're afraid that they very much are not. And you have to find some way to short-circuit people's, I think, quite natural sympathy.

You learn that this guy has three kids. He's just a guy living his life, trying to work. And now his wife and his children cannot see him, that we don't know, we don't really know what's happened to him. We don't know if he's alive or dead. That scares people and engender sympathy. And sympathy is a powerful emotion. And you know it's a powerful emotion precisely because they are trying as hard as possible to short-circuit sympathy. That at least gives me a little bit of optimism that this could go and, you know, result in some backlash.

Can I crush your optimism just for a moment? Oh, damn it, David. Maybe not crush it, just like, you know, cast a little doubt on it. So here is, there's this very strange thing happening on the right that is very explicitly designed to turn off that sympathy slash empathy. receptor in people's minds and brains and hearts. And there's a series of books that have been out taking on the very concept of empathy. You've seen Elon Musk in some of the sort of the tech bro world taking on the concept of empathy, that empathy is inherently toxic, that empathy warps your decision making so that anytime there is an appeal to sort of a person's

decency and humanity, which by the way, that's what, for example, our fundamental rights are based on. But anytime you appeal to this sort of inherent dignity of human beings and this idea that human beings should not be treated like this, then that's toxic empathy. Then you're trying to manipulate me. So there's an actually ongoing project to actively try to close the hearts of people on the right to appeals to the humanity and dignity of other people. And it's just breathtaking to see. So kind of list on a scale of one, And 10, then, how worried are you guys about the showdown that we're looking at between the administration and the courts? I think there will be a showdown between the administration and the courts.

But I'm not to allude to what I said earlier, to go back to what I said earlier. I don't necessarily think that that's going to be the most important thing. The most important thing is to be how the rest of society responds to it, right? Like, if there's a showdown between the administration and the courts and everyone's sort of like, well, I guess we just, you know, the courts for, defeated, there's not much we can do, then you should be worried, right? But if the rest of civil society is like, no, this is not okay, then you're in a better place. I do think what we have been watching generally is a collision between an out-of-control executive and a responsible judiciary. Now, the question that I have is how will the judiciary respond if that conflict escalates?

And history here, I feel like the court should be looking at history now and understand that there are moments when the court has been a giant part of the problem, Dred Scott, Plessy versus Ferguson, Korematsu versus United States. And there have been times when the Supreme Court has been indispensable towards justice. And I'm thinking about, for example, Brown v. Board that we've already talked about, West Virginia v. Barnett, you know, strongly establishing core elemental free speech rights. I mean, you can go on and on where the court. has in the face of intense public pressure done the right thing. And so this is one of those moments of national choosing. I feel like, you know, we've rested on our laurels for a while as sort of

comforting ourselves and some mystical notions of American exceptionalism as if this is a inherently better country with an inherently sort of better class of people. Turns out we're human beings just like everybody else and we're subject to the same passions and temptations and including the temptation to follow authoritarian and demagogues and the temptation to disregard the rights of others. And so this is a time of choosing. And it's not just the court. It's as Jamel said, it's all levels of society. We're coming up on the 250th anniversary of 1776 of the Declaration of Independence and the revolution. And let me say that this was one of the core points of the revolutionary generation that we're not different. We're not special. And that it's incumbent on us to like actively try to be

better to actively try and work to build a different kind of society. And obviously, their efforts were chock full of all kinds of hypocrisies. You don't need to tell me about them. I live like down the street from Thomas Jefferson. I get it. And yet, that insight and intuition, which seems basic, but it's true that we are not different, that we are subject to the same temptations. And that part of the work of being a citizen in a representative government, whether you want to call them, the democracy or a public, who cares, part of our obligations are to be mindful of our temptations and our weaknesses and do everything we can to mitigate them, both in the building of our institutions and then how we interact and live together as just people in this world.

All right, and I'm going to wrap this up by sending out my eternal plea that I'm always saying before every election after democracy must be constantly defended. And when I talk to people to voters on the campaign trail who are upset because this or that Congress member didn't save us in this or that way or they're not doing more, all I can think of is just it's not the courts that are going to save us. It's not Congress that's going to save us. It's everybody has to take a role in standing up for what's right. Otherwise, yes, we are just as susceptible to crashing and burning as any other country. All right. And with that, guys, I'm going to wish you all a fond farewell.

And please come back and let's do this again very soon. I'd love to any time. Thanks. Hopefully we'll have a more cheerful topic. Right. We're not going to let David be such a downer next time. I can be a downer whenever I want to, Michelle. Fine. Fine. If you like this show, follow it on Spotify, Apple, or wherever you get your podcasts. The Opinions is produced by Derek Arthur, Sophia Alvarez Boyd, Vesaca,

Christina Samuelski, and Jillian Weinberger. It's edited by Kari Pitkin, Alison Brusick, and Annie Rose Strasser. Engineering, mixing, and original music by Isaac Jones, Sonia Herrero, Pat McCusker, Carol Sabro, and Afim Shapiro. Additional music by Amon Sahota. The fact-check team is Kate Sinclair, Mary Marge Locker, and Michelle Hare. Audience Strategy by Shannon Busta and Christina Samuelski.

The executive producer of Times Opinion Audio is Annie Rose Strasser.